Clause 99, Catch 22 – State sadism and silencing the vulnerable

Here is the Hansard record of The Work Capability Assessments – Mandatory Reconsideration adjournment debate – it’s the 6th debate about Employment Support Allowance (ESA) tabled by Labour MP Sheila Gilmore, who has worked very hard to present her gathered and substantial evidence to an indifferent government about the terrible consequences of their sadistic sickness and disability “reforms”.

Section 102 and Schedule 11 of the Welfare Reform Act, (Clause 99) is the (State) Power to require revision before appeal. People who wish to challenge a benefit decision will no longer be allowed to lodge an appeal immediately. Instead, the Government introduced mandatory revision or review stage, during which a different Department of Work and Pensions (DWP) decision maker will reconsider the original decision and the evidence and, if necessary, send for more information.

We have campaigned since 2012 to raise awareness of Clause 99. During the Consultation period, I wrote a response to the Government’s proposals, which many people used as a template for their own responses. I remember that Black Triangle, amongst others, ran a campaign also, and I remember that we ALL RAISED THE SAME CONCERNS.

In summary, the main concerns were that basic rate Employment Support Allowance (ESA) was to be withdrawn during the mandatory review period, leaving sick and disabled people with no money to live on, whilst the DWP reconsidered their own “fit for work decisions” that were wrong.

I know that our Consultation responses were ignored by the Government. The changes were introduced anyway, despite our grave concerns. Since October 2013 people have to apply for mandatory reconsideration separately before they can lodge an appeal. We were also very worried that no time limit was established for the DWP to undertake and complete the mandatory review. Our concerns were fully justified, as it’s emerged that people are waiting 7-10 weeks for the mandatory review decision. Meanwhile, these people cannot appeal. And have no money to live on.

An added concern is that this system as it stands demands such a lot from people with who may be very vulnerable, seriously ill and/or have mental health problems. Their difficulties are exacerbated by cuts in legal aid for welfare rights advice and cuts in local authority grants. There is a significant contraction of the availability of help for those who need it the most from advice agencies.

Last year, Lord Freud suggested people awaiting their mandatory review should apply for Jobseekers Allowance (JSA) and then re-claim assessment-rate ESA if they have to appeal. However JSA claimants have to be available for and actively seeking work, and this is beyond people with disabilities or health conditions. As a result, many are ending up without any support at all from the state, having been deemed too “fit” to be eligible for ESA, but too sick or disabled to claim JSA, because these people cannot meet the high level of conditionality or availability for work.

These people are left with NO lifeline benefits for periods as long as ten weeks. It seems Penning is oblivious to the fact that DWP “decision-makers” are demonstrating quite clearly that their initial “fit for work” responses are plainly and fundamentally wrong, it seems that Tory Ministers have engineered a situation that places vulnerable people in a nightmarish situation where bureaucrats tell them they are both fit and unfit for work. Both contradictory decisions are then used to withdraw lifeline benefits. That’s not only grossly unfair, it’s terribly cruel. It also demonstrates how completely arbitrary DWP “decision-making” is, in order to justify removing people’s support.

Even if someone manages to make a successful claim for JSA, they are greatly at risk of being sanctioned because of the high level of conditionality, and the requirement to be available for work to remain eligible for the benefit.

This is how our most vulnerable citizens are being treated, what kind of government would allow such an utterly unacceptable degree of absolute callous indifference into what was originally designed as a system of support? A system that is punishing people because they are sick or disabled? And what sort of government ignores the evidence of the extreme suffering and distress they are causing people?

How can this government show no remorse whatsoever, or decent and normal concern in the face of so many accounts of such human suffering and desperation – and heartbreaking comments such as “one constituent sold off his few remaining possessions to survive” .

Many are relying on already stretched food banks, whilst others are taking out high interest loans. This situation is being exacerbated by growing delays. As we’ve pointed out, the law needs to change so claimants can be paid ESA at the assessment rate during the reconsideration process. This shouldn’t actually cost any money, as it is paid at the same rate as JSA – that benefit officials suggest claimants should receive anyway. I know that Sheila Gilmore is pushing to see basic rate ESA reinstated. She is also demanding that a statutory time limit is set on how long reconsideration decisions take. But Penning remains adamant that this isn’t going to happen.

Sheila notes that this issue was raised with Ministers when the legislation was going through the House and in subsequent sittings of the Work and Pensions Committee, for example. In April 2012, the Administrative Justice and Tribunals Council warned that the absence of a time limit could have the effect of “delaying indefinitely the exercise of the right of appeal to an independent tribunal”.

Many of the key issues with the mandatory review can be seen summarised here, here and here. Sheila Gilmore and Anne Begg have covered these extensively during the ongoing Work and Pensions Committee ESA inquiry, as well as during the course of the many separate tabled debates.

Penning, I’m sorry to say, remained indifferent when he was confronted with evidence of the unforgivable suffering, the links to suicide, the links with high risk of homelessness, hunger, anxiety and stress, and the exacerbation of illness and mental health conditions, that this Government’s policies are creating. Bearing in mind this is meant to be our government’s support for very vulnerable sick and disabled people, his position is indefensible. So are his objections to answering these questions before. He said: “Actually, this is a bit like groundhog day. According to my file, this is the hon. Lady’s fifth debate on the subject. She said that it was the sixth; perhaps we missed one….

I am slightly concerned, because I said many of the things that I am about to say to her Committee only a few days ago. I hope that its members will pay attention to what I say, because during the speech of the hon. Member for Edinburgh East I feared that the report might have already been written.”

Perhaps if he told the truth, listened and did his job properly, there would be no need for us to raise the same concerns again and again.

I doubt I could be an MP, I probably lack the necessary constraint, I’m afraid the sneer in his words, given the gravity of the situation for so many sick and disabled people, would have possibly elicited an out of character, but unstoppable, spontaneous punch in his spiteful, indifferent face, such is my anger. And reallyit’s impossible to see the welfare “reforms” as anything other than callous, spiteful and scripted indifference to people’s pain and desperation. I’ve always loathed bullies.

Sheila Gilmore said she had been told by Mark Hoban previously – last September – that claimants could request “flexible conditionality”, to avoid the difficulties imposed by JSA conditionality criteria. However, DWP’s Director acknowledged in April – some seven months later – that “not all advisors had been aware of this”. As Sheila Gilmore responded: “It is hard to have confidence in the Department, given that previous assurances were clearly unfounded.”

Penning said: “As a Minister in the DWP, I am absolutely determined that we will ensure that taxpayers’ money is spent wisely; that it goes to the people who need it; that we put in place training for the right people…”

As Sheila Gilmore points out: “There is also an administration cost involved in a claimant receiving the assessment rate of ESA, ceasing to receive it, claiming JSA and then potentially claiming the assessment rate of ESA again. These are significant costs when multiplied by the number of people involved. In addition, if everybody claimed JSA successfully, they would receive benefit at exactly the same rate as they would have been getting on ESA, so if there are any savings to be anticipated, is it because ministers thought that people would, in fact, struggle to claim JSA during the reconsideration process, given that administration costs are likely to outweigh anything else? “

“I am sure that cannot be the case.” she added.

I’m not bound by Parliamentary codes of conduct, as Sheila is. So I can say freely and categorically that it IS the case, and we anticipated this at the Consultation stage. Furthermore, the government know that WE know this, but they remain unremorseful, refusing to re-introduce assessment rate ESA, and to place a time limit on the reconsideration process.

Clause 99 has been introduced to make appealing wrong decisions that we are fit for work almost impossible. Sick and disabled people are effectively being silenced by this Government, and the evidence of a brutal, de-humanising, undignified and grossly unfair system of “assessment” is being hidden. More than 10,600 people have died between 2010 – 2011 because of the current system, (the government have refused to release the data regarding ESA-related deaths since 2011 despite numerous FOIs) and it is absolutely terrifying that our Government have failed to address this.

Instead, they have made the system even more brutal, de-humanising and unfair. What kind of government leaves sick and disabled people without the means to feed themselves and keep warm? Clause 99 is simply an introduction of obstructive and Kafkaesque bureaucracy to obscure the evidence of an extremely unfair and brutal system. By creating another layer of brutality, the Government is coercing people into silence.

Successful appeals were evidence of an unjust system, and now, having made the process almost impossible, we have ministers trying to claim that suddenly the system is fine.

It’s FAR from fine.

I would like to say a BIG thank you to Sheila Gilmore, Dame Anne Begg, and all other MPs who work tirelessly in challenging and opposing the avalanche of social injustices and authoritarian policies this government have inflicted on those least able to fight back themselves.